United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT NEITHER PRESENT NOR REPRESENTED


 


JUDGE WILKIE QC: There is, apparently, no response from Mrs Court, who is the appellant. The Court has on its file a letter from those who were representing her, dated 24^th May 1999, to the effect that the person, Mr Ghanti, who had previously represented her at the Employment Tribunal and in respect of the pending appeal, would no longer be representing her and that she had been written to and notified that she would now to seek alternate assistance.

Following that letter on 24^th May 1999, the Court received a fax from the Race Equality Council for Gloucestershire dated 11^th June 1999 at 5.00 p.m. asking for an emergency adjournment due to the fact that its Employment Officer had left the organisation and therefore they had no one available to represent Mrs Court on 15^th June 1999. That was information which had already been notified on 24^th May 1999.

On 14^th June 1999, the Registrar directed that the application be refused and that if the representative was unable to attend the hearing would go ahead in their absence and the appeal would be determined on the papers received.

We concur with that decision of the Registrar. Mrs Court has known the situation certainly since about 24^th May 1999, and if she wanted to make alternative arrangements no doubt she would have done.

1. This is an appeal by Mrs Court against a dismissal by the Employment Tribunal of her claim of racial discrimination. The essence of her claim being firstly, that she was discriminated against by not being promoted on two occasions and, on the second occasion, being after the date when she had launched proceedings in respect of the first lack of promotion, she also made a claim that she was being victimised as a result of making that complaint. Her first application was in respect an incident of discrimination, which she said took place in September 1997 and her application was dated 10^th December 1997. The second application arose after a similar incident in April 1998 and was launched shortly thereafter.
2. In her first application she made claims of racial discrimination by means of non-promotion, which she said occurred in November 1991, in August 1995, in April 1996 and again in August or September 1997.
3. The Employment Tribunal heard her evidence in full. In particular, heard her evidence in respect of the incidents of November 1991, August 1995 and April 1996, as well as the more recent incident in August/September 1997 and April 1998.
4. It appears from the terms of the extended reasons and in particular in paragraph 2 of that reasoned decision, that at the conclusion of that evidence the Employment Tribunal concluded as a fact that those prior instances did not amount to a continuing act of discrimination, but amounted to separate incidents. Accordingly, it did not hear evidence from the respondents in respect of those earlier instances, but did hear evidence from the respondents in respect of the last two incidents, namely the September 1997 and the April 1998 applications for promotion, in respect of each of which incidents the applications made by the applicant had been made in time.
5. The appeal is put on the basis that the Employment Tribunal erred in law in failing to hear evidence from the respondents' in respect of these earlier incidents and therefore implicitly, in failing to have regard to those earlier incidents.
6. Some reliance is placed on the case of Owusu v London Fire & Civil Defence Authority [1995] IRLR 574, in particular at paragraph 22.
7. It is our judgment that the appeal discloses no reasonably arguable point of law. The Employment Tribunal heard her evidence in respect of the whole the history, including the earlier incidents. At the conclusion of that evidence they were perfectly entitled to conclude, as a matter of fact, that that evidence did not disclose a continuing act of discrimination but a series of separate and discrete instances. In so doing, they addressed to themselves the correct question and answered it in a way, which was open to them on the evidence that they had heard. They were not bound to call for any more evidence or to compel the respondents to call evidence on these earlier matters; they were entitled to form the view that they did at the conclusion of the applicant's evidence.
8. Therefore, in our judgment, this was a pure issue of fact, on the basis of evidence that had been heard. In coming to that decision, they asked themselves the correct question. There was no error of law and therefore, in our judgment, this not an appeal which is reasonably arguable and with any prospect of success, and therefore we dismiss it at this stage.